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Taxes in New York (TiNY) is a blog by the Hodgson Russ LLP State and Local Tax Practice Group. The weekly reports are intended to go out within 24 hours of the Division of Tax Appeals’ (DTA) publication of new ALJ Determinations and Tribunal Decisions. In addition to the weekly reports TiNY may provide analysis of and commentary on other developments in the world of New York tax law.  

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TiNY Report for September 6, 2018 (covering DTA cases issued August 30)

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Just two ALJ Determinations this week (at least as of this writing).  There is a timeliness case and a child care credit case.  The determinations are pretty straightforward, warranting the brief summaries set out below.


Matter of Barnett; Judge: Gardiner; Division’s Rep: Ellen Roach; Taxpayer’s Rep: Pro se; Article 22.  Petitioner claimed on her 2013 return that she paid $9,400 of child care expenses to two vendors.  The Division issued a Notice denying the related dependent care credits due to a lack of substantiation.  Petitioner defaulted on her requested conciliation conference and then filed a timely DTA petition challenging the BCMS Order sustaining the Notice.  At the hearing, Petitioner testified that she did not have $9,400 of child care expenses and that she was unaware that her tax preparer had claimed that amount.  I was taught in law school that you should not admit the opposite of what you are trying to prove…or maybe that was grade school.  Anyway, not only did Petitioner admit she didn’t spend as much on dependent care as she claimed on her return, but she also failed to supply any additional documentation to substantiate the expenses claimed even though the Judge gave her a post-hearing opportunity to do so.  Not surprisingly, the Judge determined that Petitioner failed to prove the amount of her child care expenses and sustained the Notice. 

Matter of Marrero; Judge: Russo; Division’s Rep: Ellen Roach; Taxpayer’s Rep: Ariele Doolittle; Article 22.  After having previously withdrawn a notice of intent to dismiss, Judge Russo—now on the Division’s motion—dismissed Petitioner’s case on timeliness grounds.  Despite some irregularities, the Judge found that the Division adequately proved both its standard mailing practices and that they were followed when it mailed, on October 20, 2016, the Notice of Deficiency to:  (1) Petitioner at her last known address, and (2) Petitioner’s prior representative at the address provided to the Division by the prior representative.  Petitioner’s petition was filed after the 90-day deadline on February 21, 2017.  Petitioner was represented at the hearing by Hodgson Russ, so I’ll say no more here.

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